Petition for A Writ of Certiorari — Vanderwyde v. Denno

Supreme Court brief1954

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1953

No. 4k 7 Misc.

WILLIAM VANDERWYDE,

Petitioner,

against

WILFRED L. DENNO, Warden of Sing Sing Prison,

Ossining, New York,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT AND BRIEF IN

SUPPORT THEREOF

RUDOLPH STAND,

Counsel for Petitioner.

—

INDEX

PAGE

SPIN UR I i Be 1

Summary Statement of Matter Involved ...... 2

The Previous Proceedings:

CO) Em Tae le CMe ook nics c veces caus. 2

(b) In the United States Supreme Court .... 3

NL eudibie es adsie besa imonne isso a ce 6

cg a nee pence 7

sor cooprtg tay sacite costs SE RO ETE 8

Reasons for Granting the Writ .............. 8

WUE HU NUE odes Wis ooh bok ORR baK kas 10

SMR! Ai date Ao ened «te Fok ad teed es nee

SN IIE 555 ace wus ous tendon tie eevs 11

UII idk io Sin tis senuieata dca 1)

i | en 11

WIE heh ion dss oncarceie ss acciascedvis 11

I. Petitioner was entitled to a hearing on his

petition for a writ of habeas corpus ...... 11

II. The New York Judiciary Law, Section

749-aa, Sub. 4, as construed and applied to

the petitioner constituted a denial of the

due process of law or equal protection

clause of the Federal Constitution ...... 14

III. The cases of Fay v. New York, 332 U.S. 261

(1947) and Moore v. New York, 333 U. S.

565 (1948) relied on by the Court below, in

support of its decision, are clearly dis-

TIED eddie und cue ltowacdieedecu « 17

IV. The question of the constitutionality of the

special jury system and the edministration

of the New York Statute should be re-ex-

amined in the light of the 1952 New York

Judicial Council Report and the statistics

CMT UII, ok Gas ban cvanceesesivice 21

SNE Siena uicces ve vaeki bet eesctenss 23

- Appendix A—N. Y. Judiciary Law, Sec. 749-aa (4) 24

ii INDEX

TaBLe or Casks Crrep

PAGE

momen. Bem, GOS TW. GH. GOB on. ccs ca ccccccncass 6

Dennis v. United States, 339 U. S. 162 ............. 19

Dahne-Walker Milling Co. v. Bondurant, 257 U.S. 282 14

Fay v. New York, 332 U.S. 261. .5, 7, 8, 9, 18, 17, 18, 19, 23

Frazier v. United States, 3385 U. S. 497 ............. 10

Grannis v. Ordean, 234 U. S. S65... ww. cc ces 13

See We OU, UP, Oo cvs succasccccnens 18

Re i I I Wa, SUE x nics ca nievcs suds susan’ 13

A Wa TOUS, UE Ws BE hes vce ceescenscccss 20

Ee SN lO MD a on sin ie Ssccwsnson vadwanes 20

Hebert v. Louisiana, 272 U. S. 312 ... ............ 22

Helvering v. Hallock, 309 U.S. 106 .............. 22

Holiday v. Johnston, 313 U.S. 342 200. ee 8, 12, 22

Johnson v. Zerbst, 304 U.S. 458 2... 0... eee 8

Maryland v. Baltimore Radio, 388 U.S. 912 ........ 7

Moore v. New York, 333 U.S. 565. .5, 8, 9, 18, 17, 19, 22, 23

Moore v. Dempsey, 261 U.S. 86, 92 ................, 8

Mintz v. Baldwin, 2 F. Supp. 700, aff'd 289 U.S. 346 14

Morford y. United States, 339 U.S. 258 ........... 21

Nashville C. & St. L. Ry. Co. v. Walters, 294 U.S. 405 14

Ong Chang Wing v. United States, 218 U.S. 272...... 20

People v. MeQuade, 110 N. Y. 284 ........ 00... eee 20

People v. Hall, 169 N. Y. 184... ROT RHE 14, 15, 16, 18

People v. Vanderwyde, 304 N. Y. 987 .............. 2

INDEX iil

PAGE

People v. Vanderwyde, 305 N. Y. 552 .............. 3

Pointer v. United States, 151 U.S. 396 ............. 20

Smith v. Allwright, 321 U. S. 649 .................. 22

A See |) 6

United States v. Carver, 260 U.S. 482 .............. 6

United States v. Rabinowitz, 389 UL S.56 .......... 22

Vanderwyde y. Denno, 113 F. Supp. 918 ............ 11

Vanderwyde y. New York, 345 U.S. 959, 1004... ee ae

ee 6

Waley v. Johnston, 316 U.S. 101 .................. 8,12

Walker v. Johnston, 312 U.S. 275 ................. 8, 12

Orner AvTHorities Crrep

righteenth Annual Judicial Council Report (1952). .4, 7, 8,

9, 12, 16, 17, 21, 22

Sec. 749-aa, Judiciary Law of New York ...... 3, 14, 15, 24

28 U.S. C. See. 1254 (1)

28 U.S. C. See, 2243

itech. Ati te Ae es oe © oy ee

et A ee ee ee oe ee a a ee eee

USS S46 214.944

IN THE

Supreme Court of the United States

OCTOBER TERM, 1953

No. Misc.

Wir1am VANDERWYDE,

Petitioner,

against

Wirrep L. Denno, Warden of Sing Sing Prison,

Ossining, New York,

Respondent.

—

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

To THE HonoraB.e, THE CHIEF JUSTICE AND THE ASSOCIATE

JUSTICES OF THE SUPREME Court oF THE Unrrep States:

The petitioner, Wni1aM VaNpERwypE—a state prisoner

convicted by a special or so-called ‘‘blue ribbon’’ jury of

Murder in the First Degree and sentenced to death —

respectfully prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Second Circuit entered on January 21, 1954, affirming

an order of the District Court for the Southern District

of New York denying a petition for a writ of habeas corpus.

A stay of petitioner’s execution was granted by the

Court below on February 1, 1954, to permit consideration

by this Court of the present application. The order grant-

ing such stay provides that if within 30 days there is filed

with the Clerk of the Court below, a certificate of the Clerk

of the Supreme Court that the certiorari petition and other

required papers have been filed, thereupon the stay shall

continue pending the determination by this Court on such

application.

On February 2, 1954, an order was made in the Court

below, to remove the original certified record from its files

and to transmit the same to this Court for use in connec-

tion with the certiorari petition herein.

Summary Statement of Matter Involved

The Previous Proceedings

(a) In the State Courts*

The petitioner was indicted in the Court of General Ses-

sions of the County of New York for the crime of murder

in the first degree (R. 5). The indictment, charged that,

on or about May 18, 1951, the petitioner wilfully, feloni-

ously, and of malice aforethought, shot and killed one

Benjamin Dietz with a pistol (R. 5).

The petitioner (represented by assigned counsel) pleaded

not guilty on October 25, 1951 (R. 7).

On November 28, 1951, the District Attorney served an

affidavit and notice of motion for an order directing the

trial of this action by a special jury, which application was

eranted over the petitioner’s opposition (R. 12-17).

At the opening of the trial, petitioner renewed his op-

position to be tried before a special panel-ofjurers{R.

20; 24)-— ;

On April 25, 1952, the special jury found the petitioner

guilty of murder in the first degree and the trial court

thereafter sentenced him to the punishment of death (R.

10-11; 294-6). The petitioner appealed to the New York

State Court of Appeals (R. 2-4).

On January 15, 1953, the Court of Appeals, unanimously

affirmed, without opinion, the said judgment of conviction

(People v. Vanderwyde, 304 N. Y. 937).

* References, unless otherwise indicated, are to the pages of the

printed Record on Appeal in the Court of Appeals of the State of

New York submitted herewith (Document No. 3).

On February 26, 1953, the Court of Appeals amended its

remittitur to read, as follows:

“‘Questions under the Federal Constitution were pre-

sented and necessarily passed upon by this court, viz.,

(1) the appellant contended that the order of the trial

court, dated March 27; 1952, granting the motion of

the District Attorney for a special jury to try the

issues herein, over the opposition of the defendant,

was based upon moving papers which were wholly

insufficient to warrant the relief applied for; that the

granting of said motion for a special jury on insuf-

ficient papers constituted a denial of due process and a

violation of the defendant’s rights under the Four-

teenth Amendment of the Constitution of the United

States. (2) The appellant contended that section

749-aa (4) of the Judiciary Law of the State of New

York as construed and applied in this case constituted

a denial of due process and a violation of his rights

under the Fourteenth Amendment of the Constitution

of the United States. This court held that the rights

of defendant under the Fourteenth Amendment of the

Constitution of the United States had not been vio-

lated or denied.’’

The decision is reported in 305 N. Y. 552.

(b) In the United States Supreme Court

The petitioner thereafter duly applied to the Supreme

Court of the United States for a writ of certiorari to re-

view the questions arising under the Federal Constitution

which the New York State Court of Appeals certified were

presented and necessarily passed upon herein.

On May 18, 1953, the Supreme Court denied the petition

for certiorari, with no statement of reasons therefor (Van-

derwyde v. New York, 345 U. S. 959). An application for

a rehearing was denied on June 15, 1953 (345 U. S. 1004).

On July 16, 1953, the petitioner filed in the District

Court, a petition for a writ of habeas corpus, wherein he

alleged the same grounds upon which the application for

certiorari in the Supreme Court was predicated (Appendix

to Appellant’s Brief, pp. 3-12).*

Petitioner averred therein that he is not guilty of the

crime for which he was tried, convicted and sentenced to

death; that his imprisonment, restraint and sentence are

illegal and void upon the ground that he is now in custody

in violation of the Constitution of the United States,

especially that clause of the Fourteenth Amendment which

declares that no State shall deprive any person of life,

liberty or property, without due process of law, nor deny

to any person the equal protection of the laws (paragraph

Fifth; App., p. 4).

Petitioner further alleged therein as follows:

‘‘FourTEENTH: Your petitioner is further advised

that despite the denial of a petition for a writ of

certiorari by the Supreme Court, the Constitutional

questions raised herein under the due process clause of

the Fourteenth Amendment and the merits of the in-

stant petition remain open for consideration and de-

termination in habeas corpus proceedings in this

Court.

FirTEEeNnTH: In the petition for a writ of certiorari,

great reliance was placed upon the 18th Annual Report

(1952) of the Judicial Council of the Stave of New

York (Appendix B, p. 23). Its Recommendation and

Survey relating to the abolition of special juries—on

the basis of presently existing facts and statistical

tables covering the years 1941 through 1950—disclosed

to absolute demonstration that the fundamental con-

cept of a special or so-called ‘‘blue ribbon’’ jury is

repugnant to the traditional right of a person to be

* References are to the pages of the certified record (Appendix to

Appellant’s Brief) submitted herewith.

tried by a jury of his peers. The respondent, in op-

position to the petition, asserted that no substantial

question was presented and cited the five-to-four de-

cisions of Fay v. New York, 332 U. S. 261 (1947) and

Moore v. New York, 333 U. S. 565 (1948). The re-

spondent also asserted that the statistics contained in

the Judicial Council’s Report were not made part of

the record considered by the courts below, nor was the

respondent accorded an opportunity to controvert or

explain them. A copy of the petition for rehearing is

submitted to this Court on the legal question herein

involved.

Srxteentu: If such official statistics could in fact

be controverted or explained, by the respondent, peti-

tioner submits that a hearing should be ordered by

this Court to determine the facts and appropriate find-

ings and conclusions of law can then be made. In this

way an adequate and clear record may be established.

SEVENTEENTH: The respondent in opposition to the

petition for a writ of certiorari completely ignored the

unfair system in operation to which petitioner called

attention in his original petition and supporting brief

at pages 6-7; 9-10; 14-15. It was pointed out that the

prosecutor kept a secret file relating to the ‘‘past per-

formances’’ of ‘‘repeater’’ special jurors thus en-

abling him to exclude a proposed special juror who

may have formerly served on an acquitting jury, with

the result that—unknown to the defense—the jury box

can be filled in part or entirely of special jurors who

have previously voted for convictions. Such a system

is essentially unfair and petitioner submits that a hear-

ing should be ordered by this Court in order to de-

termine whether fundamental rights specially secured

by the Federal Constitution are invaded by such mode

of trial.’’ (App., pp. 8-9)

The petitioner prayed that the respondent be required

to appear and answer the allegations of the petition and

asked for ‘‘a full and complete hearing’’ in respect of the

aE Se SEER ELS SI EAE OP SIO GIO E RSE IO I MT A IRIE N

-y

merits of his petition for a writ of habeas corpus (App.,

p. 11).

The District Court instead of issuing the writ, directed

the respondent to show cause why the writ should not issue

(App., p. 12). The respondent did not make or file a

return, After argument by counsel for the respective

parties and the submission of briefs, the application for

habeas corpus was denied (J. Skelly Wright, U. S. D. J.).

The District Judge rendered an opinion (App., pp. 14-19).

A certificate of probable cause was duly issued by Judge

Wright (App., p. 20). On appeal to the United States

Court of Appeals for the Second Circuit, the order was

affirmed on opinion below (App., pp. 23-4).

Jurisdiction

The judgment of the Court of Appeals was entered on

January 21, 1954 (App., p. 25). The jurisdiction of this

Court is invoked under 28 U.S. C., Section 1254 (1).

At this point, it may be noted that the Supreme Court

has finally decided an issue which has been dividing the

lower federal courts during the past few years—the effect

of the Supreme Court’s refusal of certiorari on direct

i review of a state court criminal judgment, when a similar

issue arises in a subsequent habeas corpus proceeding be-

fore a federal district court.

4 A denial of certiorari by the Supreme Court to review

a decision of a State Supreme Court affirming a conviction

(with no statement of reasons therefor, as in the case at

bar) should _be given no weight by a Federal Court in

passing upon the same petitioner’s application for a writ

oa a gy me BPR YE OA pera! an

upreme Court has frequently reiterated that ‘‘the

denial of a writ of certiorari imports no expression of

opinion upon the merits of the case, as the bar has been:

told many times’’ (United States v. Carver, 260 U. S. 482,

490; Sunal v. Large, 332 U. 8S. 174, 181; Wade v. Mayo,

334 U. S. 672, 680; Maryland v. Baltimore Radio Show,

338 U. S. 912, 917-20).

In view of the foregoing authorities, there can no longer

be any doubt or uncertainty that a simple order—as in

this case—denying a petition for a writ of certiorari is

not designed to reflect the Supreme Court’s views either

as to the merits of the case or as to its jurisdiction to

hear the matter and should be given no legal significance

or effect when an application for habeas corpus in that

case comes before a Federal District Court.

Questions Presented

1. Whether the petitioner was entitled to a hearing

and the opportunity of adducing testimony and competent

evidence on the factual issues raised in his petition for

a writ of habeas corpus, pertaining to:

(a) the statistics contained in the 18th Annual Report

(1952) of the Judicial Council of the State of

New York in its survey of special juries covering

the judicial years 1941 through 1950;

(b) the unfair system in operation with respect to

the secret file kept by the prosecutor of the past

performances of ‘‘repeater’’ blue ribbon jurors.

2. Whether the District Court should have held a full

judicial inquiry and should have made and filed its find-

ings of fact on these issues in compliance with the mandate

of 28 U.S. C. § 2248:

‘«* * * The court shall summarily hear and deter-

mine the facts, and dispose of the matter as law and

justice require.’

3. Whether the courts below erred in denying the peti-

tion for a writ of habeas corpus on the grounds assigned

for its decision.

4. Should the question of the constitutionality of the

use of special juries under the New York Statute upheld

by this Court in Fay v. New York (1947), 332 U. S. 261,

Bester seria nei cor pe RANT FELL Re IE Re PEND

and Moore v. New York (1948), 333 U. S. 565, be re-

examined in the light of the 18th Annual Report (1952)

of the Judicial Council of the State of New York reflecting

presently existing facts and changing conditions?

Statute Involved

The pertinent statutory provisions are printed in Ap-

pendix A, infra, page 24.

Reasons for Granting the Writ

1. In violation of settled law and the constitutional

guarantees of the petitioner, there has never been a hear-

ing on the questions of fact raised in this habeas corpus

proceeding. The decision of the court below is believed

to be erroneous and conflicts with applicable decisions of

this Court (Rule 38 (b) of the Rules of the Supreme

Court) in habeas corpus proceedings.

See:

Moore v. Dempsey, 261 U. S. 86, 92;

Johnson v. Zerbst, 304 U. S. 458, 466;

Walker v. Johnston, 312 U. S. 275, 285-6;

Holiday v. Johnston, 313 U. S. 342, 351;

Waley v. Johnston, 316 U. S. 101, 104.

2. In 1947 and 1948 this Court—on the basis of the

record then presented—sustained the constitutionality of

the New York special jury statutes in two cases, in five-to-

four decisions (Fay v. New York, 332 U. 8S. 261 (1947);

Moore v. New York, 333 U. S. 565 (1948)).

In view of these cases, the Judicial Council in its 18th

Annual Report (1952) conducted a survey for the purpose

of re-evaluating its past recommendations for the abolition

of special juries as unjust, undesirable and unnecessary in

the light of presently existing facts. Reasserting its belief

that the basic concept of a special jury is repugnant to the

traditional right of a person to be tried by a jury of his

peers and commenting on the Fay and Moore decisions,

supra, the Judicial Council:

‘** * * suggested that a re-appraisal of the application

of standards under the law on a current basis might

have changed the result. * * *

The wisdom of sending men to the electric chair on

their conviction by a jury selected under a system

which four justices of the Supreme Court of the United

States have condemned as unconstitutional on weaker

evidence of its defects than is here presented is ques-

tionable. Especially is this true when there is a con-

stitutional system already in existence, the merit of

which is publicly testified to by judges in our courts

who are in daily contact with it’’ Original Record,

Document No. 5, (Appendix B, p. 23, at pp. 158-9).

3. In the Fay and Moore cases, supra, no questions ap-

pear to have been raised, as in this case, as to (a) the

sufficiency of the affidavit in support of the motion for a

special jury, which failed to allege all the essential facts

necessary to bring the case within the conditions imposed

by the statute respecting special juries (R. 14-15), and

(b) whether, in these circumstances, the statute involved

as construed and applied te the petitioner constituted a

denial of the due process of law or equal protection clause

of the Constitution, since the right to a special jury exists

only in those cases provided for in the statute and should

not be granted as of course.

4. We respectfully submit that the judgment of the

Court below should be reviewed since it is based upon the

aforementioned decisions, which we urge ought to be re-

examined from the viewpoint of presently existing facts as

revealed by the Judicial Council’s Survey Relating to

Special Juries in its 18th Annual Report, 1952.

5. The Judicial Council’s exhaustive and critical anal-

ysis of the problem adequately meets the questions raised

by this Court in the Fay and Moore cases, supra, partic-

ularly in the tables appended to its Survey, dealing with

the Disposition of Defendants Tried Before Special Juries;

Comparisons of Occupations of Special and General Ju-

rors; Comparison of the Education of Special and General

S. .

Jurors; and Comparison of the Number of Women on

Special and General Jury Panels (Appendix B, infra, pp.

167-71). We submit that these official statistics reflecting

presently existing conditions furnish the most cogent rea-

sons for a further consideration and complete re-examina-

tion of this important question in the administration of

justice.

6. By reason of the limited number of the jurors (about

3,000) on the special panel, the same jurors are frequently

summoned and examined in successive cases, year in and

year out, so that it is not unusual to find on any special

panel of 125 or more, a predominant number who have

served before in capital cases.

As shown by the record in this case (R. 20-21) the Dis-

trict Attorney’s office in New York County is armed with

information as to the ‘‘past performances’”’ of the ‘‘re-

peater’’ jurors in prior cases and knows whether they

served on juries voting for conviction.

Individual judges may in some cases as a favor allow

this secret information to be given to defense counsel, but

some judges refuse to do so upon the ground that such

records are confidential. A trial under such a system lacks

the fundamental essentials of due process and shocks one’s

sense of right and fair play. ‘‘* * * the cards [are]

stacked from the beginning’’ (Frazier v. United States,

335 U. S. 497, 517, Jackson J., dissenting).

One of the fundamental safeguards to an impartial trial

is thus broken down and one of the securities to an im-

partial verdict is overthrown.

WHEREFORE, your petitioner respectfully prays that this

petition for a writ of certiorari should be granted and for

such other and further relief as this Court may deem just

and proper.

Dated: New York, February 26, 1954.

WituiaM VANDERWYDE,

Petitioner,

By: Rupoiex Sranp,

Counsel for Petitioner.

BRIEF IN SUPPORT OF PETITION

Opinions Below

The opinion of the District Court (J. Skelly Wright,

U. 8. D. J.) is to be found at App., pages 14-19. The case

is reported in 113 F. Supp. 918. The Court of Appeals

affirmed the order on opinion below (App., pp. 23-4). It

has not yet been officially reported.

Jurisdiction

The statement under which the jurisdiction of this Court

is invoked is set forth in the petition.

Statement of the Case

The statement of the questions presented and the factual

matter relevant to this application appear in the petition;

in the interest of brevity they will not be repeated here.

Argument

The reasons relied on for the allowance of the writ are

set forth in the petition. The points of the argument

coincide therewith and are discussed below.

POINT I

Petitioner was entitled to a hearing on his petition

for a writ of habeas corpus.

We think that no extended discussion of this point is

necessary. Fundamental concepts of due process and

the command of the statute (28 U. S. C. § 2243) require

that the trial court shall conduct a judicial inquiry into

the facts raised in the petition for habeas corpus and

should make and file findings of fact thereon. The ques-

tion of the right to a hearing on factual issues in habeas

corpus proceedings has been frequently considered in var-

ious decisions of this Court.

In Walker vy. Johnston, supra, 312 U. S. 275, 285-6, Mr.

Justice Roberts stated:

‘*As we said in Johnson v. Zerbst, 304 U. S. 458, 466,

‘Congress has expanded the rights of a petitioner for

habeas corpus * * * ‘There being no doubt of the

authority of the Congress to thus liberalize the com-

mon law procedure on habeas corpus * * * it results

that under the sections cited a prisoner in custody

* * * may have a judicial inquiry * * * into the very

truth and substance of the causes of his detention’

** *’ Such a judicial inquiry involves the reception

of testimony, as the language of the statute shows.”’

In Holiday v. Johnston, supra, 313 U. S. 342, 353-4 (a

habeas corpus case) the Court said:

“The District Judge should himself have heard the

prisoner's testimony and, in the light of it and the

other testimony, himself have found the facts and

based his disposition of the cause upon his findings.

The petitioner has not been afforded the right of

testifying before the judge, which the statute plainly

accords him. In order that he may have that right

we reverse the judgment and remand the cause to the

District Court for further proceedings in conformity

to this opinion. We express no opinion as to the

weight or sufficiency of the evidence heretofore ad-

duced. The issues of fact will be for solution by the

District Court upon a further hearing.’’

See also:

Waley v. Johnston, supra, 316 U. 8. 101, 104.

The petitioner asked for ‘‘a full and complete hearing’’

respecting the merits of his petition for habeas corpus

(App., p. 11) relating to:

(a) the statistics contained in the 18th Annual Re-

port (1952) of the Judicial Council of the State of

New York in its survey of special juries covering the

years 1941 through 1950;

(b) the unfair system in operation with respect to

the secret file kept by the prosecutor of the past per-

formances of ‘‘repeater’’ blue ribbon jurors (App.,

pp. 8-9).

In rejecting the petitioner’s claim that use of the special

jury deprived the petitioner of due process, the District

Judge in his decision, relied on the cases of Fay v. New

York, supra, and Moore v. New York, supra (App., p. 16).

The allegations respecting the unfair system relating to

the prosecutor's secret file concerning the past perform-

ances of ‘‘repeater’’ blue ribbon jurors—are not discussed

in the opinion of the court below.

The District Judge, however, in the course of his opinion,

stated (App., p. 17):

**A successful challenge to this judgment under the

due process clause depends upon a showing that the

defendant's trial was so unfair as to deprive him of

due process of law and the burden of proof is upon

the petitioner.”’

The petitioner concedes that the burden rested on him,

but in the words of Mr. Justice Reed, in Hawk v. Olson,

326 U. S. 271, at p. 279 (a habeas corpus case wherein, as

here, no response was filed or evidence received in the dis-

trict court):

‘**Petitioner carries the burden in a collateral attack

on a judgment. He must prove his allegations but

he is entitled to an opportunity.”’

‘*Due process of law’’ is incapable of exact definition

yet ‘‘the fundamental requisite of due process of law is

the opportunity to be heard’’ (Grannis v. Ordean, 234 U.S.

385, 394).

POINT Il

The New York Judiciary Law, Section 749-aa, Subd.

4, as construed and applied to the petitioner consti-

tuted a denial of the due process of law or equal pro-

tection clause of the Federal Constitution.

While we concede that the application if properly made

and for proper reasons, is addressed to the sound discre-

tion of the Court, we respectfully contend that no con-

struction should be put upon the statute that would allow

it to be wholly disregarded or to be lightly considered.

On the contrary, courts should be reluctant to grant an

application for a special jury and should deny such ap-

plications except in cases where there is a showing of a

real necessity therefor. The statute should be strictly

construed and not extended by implication to cases not

falling within its terms.

It is well settled that a statute may be constitutional as

applied to one set of circumstances and unconstitutional

when it is made to cover a situation not embraced within

its contemplation (Dahne-Walker Milling Co. v. Bondur-

ant, 257 U. S. 282, 289; Nashville, C. & St. L. Ry. Co. v.

Walters, 294 U. S. 405; Mintz v. Baldwin, 2 F. Supp. 700,

affirmed 289 U. S. 346).

The District Judge cited in his opinion (App., p. 16)

the case of People v. Hall (1901), 169 N. Y. 184 where the

Court of Appeals reviewed an order granting a special

jury and there held that, inasmuch as the indictment was

for the crime of murder in the first degree that such fact

alone was sufficient to warrant the making of the order,

in the sound discretion of the Court. Indeed, the re-

spondent in the New York Court of Appeals, took the posi-

tion that the affidavit challenged here was in the ‘‘usual

form’’.

It is a settled principle of interpretation that you can

neither read words into a statute, nor out of a statute. If

the Legislature intended that every capital case must be

tried by a special jury, it was easy to say so and insert

words to that effect. A court in interpreting a statute

cannot hold that the Legislature must have intended to

do that which it has failed to do. A court’s refusal to

recognize the plain meaning of the statute indicates a

purpose to change the law by judicial action.

The reason underlying the Hall case, supra, 169 N. Y.

184, 196-7, appears to rest on the assumption that in pre-

scribing the qualifications of special jurors, ‘‘the legis-

lature seems to have had capital cases primarily in mind,

for the Commissioner is prohibited from selecting any per-

son as a special juror’’ who (a) has conscientious scruples

against the death penalty, or (b) who has such opinions

as would prevent a verdict of guilty in any case upon cir-

cumstantial evidence, or (c) who has a prejudice against

any particular defense to a criminal charge as would pre-

vent his finding a fair and impartial verdict upon its

merits. The Court there further said at pages 196-7:

‘‘The Commissioner is required to personally examine

every one selected as a special juror with reference

to these matters among others before making the

selection’’. (Emphasis supplied)

Let us examine the statute (Judiciary Law, Sec. 749-aa,

subd. 2) and note what these other matters are. We find

that the Commissioner is prohibited from selecting (d)

a person who doubts his ability to lay aside an opinion

or impression formed from newspaper reading or other-

wise and render an impartial verdict on the evidence, (e)

a person who has any prejudice against any state law, or

(f) a person who avows that he cannot in all cases give

to a defendant who fails to testify the full benefit of the

statute that such failure shall not create any presumption

against him.

Obviously, all the matters stated above except as to (a)

the infliction of the death penalty if the crime charged be

punishable by death, have general application to any crim-

inal case. Yet it has never been urged that an accused may

be put to trial before a special jury, over his objection, be-

cause the case against him rests, for instance, solely upon

circumstantial evidence.

The statute clearly limits the granting of the application

to such cases as are shown by competent and sufficient

proof to come within its scope. A special jury should not

be ordered generally, systematically or indiscriminately

for the mere asking. That is the basic error in this case.

Such a result will produce injustice.

The Hall case, supra, 169 N. Y. 184 was decided over 50

years ago and is, of course, wholly inapplicable to present

day conditions. The administration of criminal justice has

made great progress since then.

In its 18th Annual Report (1952) of the Judicial Council,

annexed to the original record (Document No. 5, Appendix

B, p. 23), it summarizes its findings as follows at page 158:

‘*1. The special jury is no longer needed because the

general jury system is producing a fair cross sec-

tion of the community capable of determining any

case.

There are no objective statutory qualifications by

which the selection of special jurors may be differ-

entiated from those selected for the general jury

panel.

3. The special jury panel is a less fair cross section

of the community than the general jury panel be-

cause of greater imbalances as to:

(a) occupation, there being a disproportionate

weighting in favor of ‘business’ people as op-

posed to ‘working’ people;

(b) educational qualifications ;

to men on the special jury panel than on the

general jury panel.’’

The Judicial Council was established by the Legislature

(Judiciary Law, §§ 40-48) to make a continuous survey and

study of matters relating generally to the administration of

justice in all courts of the State. Its membership includes

the Chief Judge of the Court of Appeals, the presiding

justices of each Appellate Division of the Supreme Court

and leading members of the Bar and of the Legislature.

(Hon. Herbert Brownell, Jr.—now Attorney General of

the United States—is one of the signers of the 18th Annual

Report (1952) ).

Even before the impartial re-appraisal of the problem

by this official body on the basis of presently existing facts

and conditions, Mr. Justice Murphy in his dissenting

opinion in the Fay case, supra, 332 U. S. 261, 296, (con-

curred in by Mr. Justice Black, Mr. Justice Douglas and

Mr. Justice Rutledge), declared in 1947:

‘*The equal protection clause of the Fourteenth

Amendment prohibits a state from convicting any

person by use of a jury which is not impartially drawn

from a cross-section of the community. That means

that juries must be chosen without systematic and

intentional exclusion of any otherwise qualified group

of individuals * * * Only in that way can the democratic

traditions of the jury system be preserved * * *.’’

POINT III

The cases of Fay v. New York, 332 U. S. 261 (1947)

and Moore v. New York, 333 U. S. 565 (1948) relied

on by the Court below, in support of its decision, are

clearly distinguishable.

The opinion of the District Judge states (App. 14):

‘s* * * Having exhausted his state remedies, and

having applied unsuccessfully to the Supreme Court

for a writ of certiorari, he (petitioner) is properly

before this Court on motion for writ of habeas corpus

* * #99

The Court below ruled, however, that the cases of Fay

v. New York, and Moore v. New York, supra, resolved the

issue made here.

The basic contention of the petitioner is that there exists

a marked distinction between the case at bar and the Fay

and Moore cases.

EE PETAR

The Court in the Fay case was willing to re-open the

question of the constitutionality of the special jury system

and the administration of the New York statute ‘‘in the

light of more recent trends of decision and of particular

facts about the operation of the jury system not advanced

in support of the argument in the earlier case, to disap-

prove the special jury system’’ (p. 270).*

In the Fay case, Mr. Justice Jackson, stated at page 265

of the majority opinion:

‘*A dual system of juries presents easy possibilities

of violation of the Fourteenth Amendment and we

took these cases by certiorari to examine the charges

of unconstitutionality.’’

It must be borne in mind that the statistics then before

the Supreme Court in the Fay case were more than ten

years old (p. 281). The Supreme Court accordingly took

the position that the evidence as shown by the Reports of

the Judicial Council was not sufficiently recent to avail the

petitioners in that case and sustained the constitutionality

of the New York special jury statute in a sharply split five-

to-four decision.

Mr. Justice Jackson declared at page 272 in the Fay

case, supra:

‘*As to the actual results of application of the statute,

the litigants are in controversy. The New York courts,

doubtless influenced by the fact that long ago they had

upheld similar statutes, made no findings of fact and

wrote no opinion on the subject. It is to be regretted

that we must deal with questions of fact without aid of

findings by the courts whose experience with the sys-

tem and proximity to the local conditions with which

the special jury customs are so interwoven would en-

title their findings to very great weight. We would,

in any case, be obliged on a constitutional question to

* The Court referred to Hall v. Johnson, 186 U. S. 480, which is

the same case as People v. Hall, 169 N. Y. 184, decided in 1901, cited

in the opinion of the District Judge (App. page 16).

reach our own conclusions, after full allowance of

weight to findings of the state courts, and in this case

must examine the evidence.”’

It is thus apparent that the Fay and Moore cases, were

each decided upon its special circumstances and must be

understood to be confined to the record then before the

Supreme Court. To what extent a different record would

have resulted in a different conclusion was not indicated.

It certainly cannot be reasonably argued that the Supreme

Court intended to put an irrevocable end and to close the

door forever on this highly controversial and serious ques-

tion in the administration of criminal justice.

No question—as here—was raised in the Fay and Moore

cases, as to the legal insufficiency of the District Attorney’s

affidavit in support of the motion for a special jury (R.

14-15).

We have pointed out that the prosecutor kept confidential

records made up of the ‘‘past performances’’ of special

jurors who have previously served in capital cases, thus

enabling him to exclude a proposed juror who may have

served on an acquitting jury by utilizing his thirty per-

emptory challenges, with the result that—unknown to the

defense—the jury box can be filled entirely of special jurors

who have previously voted for convictions.

Although the trial judge in this case directed the prose-

cutor to make such secret records available to the defense,

(R. 20-21) these records, however, were never actually

examined by defense counsel, who relied wholly upon the

prosecutor’s statements as to their contents. Such mode

of trial is essentially unfair and liable to grave abuse. The

danger that lurks in this system can easily deprive a capital

trial of any semblance of fairness. It has no proper place

in our American jurisprudence. ‘‘The right to fair trial

is the right that stands guardian over all other rights”’

(Dennis v. United States, 339 U. S. 162, 173).

Here, once more, is another issue which was not before

the Supreme Court in the Fay and Moore cases. A ques-

tion so fundamental to the rights of defendants, which

— LLG SILL OORT LO Ge IPE NIE LOIS LAE LIE IDOE ES IEE IEE DN ELEMIS DEN IDI OLED.

arises frequently in capital cases, is a federal question of

the utmost importance.

In Hildredth v. Troy, 101 N. Y. 234, at 239-40, the Court

of Appeals declared:

‘‘The jury system to be successfully administered re-

quires not only absolute impartiality in fact, in the

drawing of jurors, but such an adherence to forms and

methods of procedure as will secure public confidence

and prevent any suspicion of improper or unfair deal-

ing.”’

A fair trial is in all of the decisions of the Supreme

Court declared to be one of the conditions without which

due process of law cannot exist (Ong Chang Wing v. United

States, 218 U. S. 272, 279-80; Hill v. Texas, 316 U. S. 400,

406).

The right of peremptory challenge in capital cases, has

been spoken of as ‘‘one of the most important of the

rights secured to the accused’’ (Pointer v. United States,

151 U. S. 396, 408).

The defendant is entitled to be tried by the first twelve

competent, unbiased and qualified jurors drawn by lot.

To be deprived of a juror who is competent impairs a

substantial right of a defendant. The rejection of a com-

petent juror is ground of error; although the jurors who

actually try the case are competent, it is the right of a

party to require that the range of selection shall not be

limited by excluding without cause a competent juror from

the panel (Hildredth v. Troy, supra, 101 N. Y. 234; People

v. McQuade, 110 N. Y. 284, 306).

The printed record on appeal to the New York State

Court of Appeals submitted herewith (Document No. 3)

does not contain the minutes of the voir dire examination

of the jurors as to their previous service as jurors in capi-

tal cases and the challenges, that were taken to individual

jurors by the People or by the defendant. The practice

of including the examination of the talesmen in the records

in homicide cases was discontinued in New York State

over 20 years ago.

ELDER L A RNEET ANS SRR NIL BETO —

— AD CPDS A LP SOUTER 2 LIRA E TE UE CEES EE NTE TLE ERIE LEME EE IE

What actually transpired during the examination of the

jury herein, whether or not petitioner or his counsel actu-

ally saw the secret records which the court directed to be

made available and all the surrounding circumstances can

only be revealed on a hearing to which the petitioner

claims he was entitled in this habeas corpus proceeding.

This Court has already held that the preservation of the

opportunity to prove actual bias is a guarantee of a de-

fendant’s right to an impartial jury, and that a denial of

such opportunity constitutes reversible error (Morford v.

United States, 339 U. S. 258).

A fortiori, petitioner was entitled to disprove bias, in

the selection of the final arbiters of his fate.

POINT IV

The question of the constitutionality of the special

jury system and the administration of the New York

Statute should be re-examined in the light of the 1952

New York Judicial Council Report and the statistics

therein contained.

The 1952 Judicial Council’s Report is not the partisan

plea of an advocate. It constitutes a critical study and

impartial analysis made by an official body of an important

and serious problem in the administration of criminal

justice and its survey is entitled to great consideration

and respect.

The District Judge in his opinion stated (App. page 16):

‘*Petitioner apparently overlooks the fact that the

statute provides for the use of a special jury not only

in intricate cases but also in cases of importance.”’

The Judicial Council, however, state at page 159 of Ap-

pendix B (Document No. 5):

‘*Even though murder trials are in some respects more

‘important’ than others, there does not seem to be any

factual basis for the assumption that they are more

difficult of proof or more complex or require more

understanding or ability on the part of the jurors than

many other types of cases. Nor can it be seriously

argued that murder trials in counties of more than one

million population are more intricate or difficult of

comprehension than in counties of less than one mil-

lion.

Trying one indicted for murder in Kings County by a

special jury, aside from any question of constitu-

tionality, but trying those similarly indicted in nearby

Nassau County by a general jury does not readily

appeal to reason or sound public policy.’’

The guaranty of due process of law requires ‘‘that state

action, whether through one agency or another, shall be

consistent with the fundamental principles of liberty and

justice which lie at the base of all our civil and political

institutions and not infrequently are designated as ‘law

of the land’ ’’ (Hebert v. Louisiana, 272 U. S. 312, 316-7).

Congress has liberalized and expanded the concept of

habeas corpus in interests of protecting individual liberties,

so that federal courts must now examine all facts concern-

ing a person’s detention and thereby insure that justice

has been done (Holiday v. Johnston, supra, 313 U. S. 342,

351, 352).

To do otherwise, in the present case, means the death of

this petitioner, the victim of ‘‘a tragic consequence that

ean flow from the use of the ‘blue ribbon jury’ ’’ (Dis-

senting opinion by Justice Murphy, in which Justices Black,

Douglas, and Rutledge concurred in Moore v. New York,

supra, 333 U. 8S. 565, 569).

This Court has squarely announced that it has never

felt constrained to follow a previous decision which upon

reexamination is believed erroneous. (Smith v. Allwright,

321 U.S. 649, 665; See also, Helvering v. Hallock, 309 U. S.

106; United States v. Rabinowitz, 339 U. S. 56.) On the

basis of the 1952 New York Judicial Council Report and

the statistics therein contained, we earnestly urge that the

question herein involved be re-examined. Surely, in the

light of this Report, much stronger reasons now exist which

RR RNa LID ae ee ial we PP

call for a review of the constitutional question in the

present case as compared with the grounds prompting this

Court to review the Fay and Moore cases.

CONCLUSION

For these reasons, it is respectfully submitted that a

writ of certiorari should issue as prayed for in the

petition.

Rupoipx StTanp,

Counsel for Petitioner.

BB 9 ae reste weet Ip MER EAN FREI AEP NIE EAI EET

APPENDIX A

Statute Involved

The New York Statute involved is New York Judiciary

Law, Section 749-aa, subd. 4, and we quote its pertinent

provisions as to the procedural and factual requirements

of an application for a special jury in certain counties: ,

‘*4. Application for special jury. Whenever an issue

of fact has arisen in any * * * criminal action * * *

the district attorney * * * may apply for a special

jury to try such issue. Such application * * *

must be made upon the indictment, the plea thereto

and an affidavit * * * upon two days’ notice to the

adverse party or his attorney. Where, upon such

application, it appears to the court that by reason

of the importance or intricacy of the case, a special

jury is required, or that the subject matter of the

indictment or the issue to be tried, has been so

widely commented upon that the court is satisfied

that an ordinary jury cannot without delay and

difficulty be obtained to try such issue, or that for

any other reason the due, efficient and impartial

administration of justice in the particular case

would be advanced by the trial of such an issue

by a special jury, the court to which the motion is

made may make an order directing such trial be

had by a special jury, and such trial shall be had

accordingly * * *.’’

Supreme Court of the United

October Term, 1953

No. 447 Misc.

) WILLIAM VANDERWYDE,

Petitioner,

against

WILFRED L. DENNO, Warden of Sing Sing

Prison, Ossining, New York,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

NaTHANIEL L. GoupsTEIN

Attorney General of the

State of New York

Frank S. Hocan

District Attorney of the

County of New York

Wenve.u P. Brown

Solicitor General

SAMUEL A. Hirsuowrrz

TuHeopore P. Havprertn

Assistant Attorneys General

Ricuarp G. Denzer

Pau. A. Strong

Assistant District Attorneys

Of Counsel

Qi 807 = BAR PRESS INO., 54 LAFAYETTE 8T., NEW YORK 13 — Wa, 5 - 3482-3.

INDEX

PAGE

Proceedings Below

A. The Actions of the Courts Below 1

B. The Questions Presented to the Courts Below 2

The Questions Presented to this Court and the Re-

spondent’s Position 3

Argument—The District Court was without power to

issue the writ of habeas corpus in this case 6

Conclusion 10

Table of Cases

Betts v. Brady, 316 U.S. 455 7

Brown v. Allen, 344 U.S. 443 9

Brown v. New Jersey, 175 U. S. 172 7

Darr v. Burford, 339 U. S. 200 3]

Davis v. Burke, 179 U.S. 399 9

ix parte Spencer, 228 U. S. 652 9

Fay v. New York, 332 U.S. 261 5, 8

Frank v. Mangum, 237 U.S. 309 7

In re Wood, 140 U.S. 278 9

Moore v. New York, 333 U. S. 565 5,8

People v. Vanderwyde (1953) 304 N. Y. 937 1

People v. Vanderwyde (1953) 305 N. Y. 552 1,7

Snyder v. Massachusetts, 291 U. S. 97 7

Vanderwyde v. New York, 345 U.S. 959 2, 3, 4, 7,8

Vanderwyde v. New York, 345 U. S. 1004 2,4,7,8

li Index

Statutes Cited

PAGE

Constitution of the United States, 14th Amendment... 3,7

New York Code of Criminal Procedure

a tea andes eal 4

RNG Rares Aiea Wk ene Cer PE: PN RNR RY SIA 2

New York Judiciary Law

SRL IER Seer eee mre Cer en ee 3

INN MN 8 scsi can ihs ucencas unikes Cou eanteouecinion 2,3,7,9

New York Penal Law

I yc ee en 1

Supreme Court of the Hnited States

October Term, 1953

No. 447 Misc.

——EE— a

WILLIAM VANDERWYDE,

Petitioner,

against

WILFRED L. DENNO, Warden of Sing Sing

Prison, Ossining, New York,

Respondent.

— ee

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Proceedings Below

A. The Actions of the Courts Below

Petitioner was convicted of the crime of Murder in the

First Degree (N. Y. Penal Law, §1044, subd. 1) by a judg-

ment of the Court of General Sessions, New York County,

rendered on April 30, 1952, and was sentenced to death

(10-1).* The judgment of conviction was affirmed, on

January 15, 1953, by the Court of Appeals of the State of

New York (People v. Vanderwyde, 304 N. Y. 937, motion

to amend remittitur granted, 305 N. Y. 552).

* References are to pages of the printed record on appeal to the New

York State Court of Appeals.

Following unsuccessful efforts in this Court to obtain a

writ of certiorari to the New York State Court of Appeals

(Vanderwyde v. New York, 345 U. 8. 959, motion for re-

hearing denied, 345 U. S. 1004), the petitioner applied to

the United States District Court for the Southern District

of New York, on July 16, 1953, for a writ of habeas corpus

to deliver him from the custody of respondent Denno, the

warden of New York’s Sing Sing Prison, where he is

confined pending execution. That application was denied

by the District Court (J. Sketty Wricut, U. S. D. J.), on

July 29, 1953 (Vanderwyde v. Denno, 113 F. Supp. 918)

and the determination of the District Court was affirmed

by the United States Court of Appeals for the Second

Circuit on January 21, 1954 (New York Law Journal,

January 22, 1954, p. 18, col. 3). It is that affirmance that

the petitioner seeks to have reviewed by means of the

present petition.

In the event that this Court denies the present petition,

the New York State Court of Appeals must, on proper

application, fix a new date for execution of the petitioner,

since the date last specified by that court for that purpose

passed while a stay of execution, granted by the District

Court, was in effect (see N. Y. Code of Criminal Procedure,

§503).

B. The Questions Presented to the Courts Below

The jury that found petitioner guilty of Murder in the

First Degree were drawn, on motion of the prosecution

and over petitioner’s opposition, from a panel of special

jurors for New York County, maintained as required by

section 749-aa of the New York Judiciary Law (7, 16-18,

20, 24). The composition of that panel was not necessarily

the same as that of the general jury panel coexisting under

the mandate of Article 17 of the Judiciary Law (§§$590-608).

In the New York State courts, the defendant contended,

unsuccessfully, that the motion papers on which the special

jury was ordered were legally insufficient because, instead

of stating facts showing the existence of the conditions

under which section 749-aa, subdivision 4, of the Judiciary

Law permits the use of a special jury, they merely alleged

the existence of those conditions in conclusory form, fol-

lowing the language of the statute (20, 24; appellant’s brief

on appeal to New York Court of Appeals, pp. 64-71). He

also contended unsuccessfully that, under those cireum-

stances, the ordering of a special jury and the construction

and application of section 749-aa, subdivision 4, of the

Judiciary Law as authority therefor, deprived him of

rights guaranteed by the Fourteenth Amendment to the

Constitution, including the due process of law (application

for habeas corpus, paragraph Srventu; appellant’s brief

on appeal to New York Court of Appeals, pp. 64-71).

Applying to this Court for certiorari to the New York

Court of Appeals, petitioner assigned those contentions as

‘*Questions Presented’’ by his application, and also con-

structed his argument on them in his brief to include a

specification that he had been denied the equal protection

of the laws (Vanderwyde v. New York, 345 U.S. 959, appli-

cation for certiorari, pp. 4, 11-19).

In addition—not as ‘‘Questions Presented,’’ but as rea-

sons for allowance of the writ—he contended that the com-

position of the special panel was unfair (id., pp. 7-9, 18-19;

s. ¢., 345 U. S. 1004, petition for rehearing, pp. 3-5, 8).

Invoking statistics published in the 1952 report of the New

York State Judicial Council, he asserted that, as compared

to the general panel, the special panel was marked by a

high ratio of guilty verdicts returned in criminal cases, by

a disproportionate weighting in favor of ‘‘business’’ people

as opposed to ‘‘working’’ people, and by imbalances as to

education and sex (Vanderwyde v. New York, 345 U. S.

959, application for certiorari, pp. 18-19, appendix B; s. ¢.,

345 U.S. 1004, petition for rehearing, pp. 3-3).

He also claimed, as a corollary, that the ‘‘fundamental

concept’’ of the special jury system was unconstitutional

because it deprived a defendant of the right ‘‘to be tried

> (Vanderwyde v. New York, 345

U. S. 1004, petition for rehearing, pp. 3-4).

by a jury of his peers’

And, finally, he based a further claim of denial of due

process upon an assertion that the prosecution maintained

a secret record of special jurors’ past actions in other

cases, which it could use, in combination with its peremp-

tory challenges (see N. Y. Code of Criminal Procedure,

$373), to secure a jury containing persons who had voted

for convictions in the past (td., pp. 6-8; see s. ¢, 345 U.S.

959, application for certiorari, pp. 6-7, 9-10, 14-15).

In his application for habeas corpus in the United

States District Court, following this Court’s denial of

certiorari, petitioner incorporated the contents of the

certiorari application and petition for rehearing thereon

and requested a hearing for the purpose of proving the

contentions therein contained (application for habeas cor-

pus, paragraphs Sixtu, Firreentu, SixTeentu and Seven-

TEENTH).

The Question Presented to this Court and

the Respondent’s Position

Upon the filing of petitioner's application for habeas

corpus, the District Court made an order requiring re-

spondent Denno to show cause why the writ should not

issue and directing that copies be served on the New York

State Attorney General and the New York County District

Attorney (see order to show cause, dated July 16, 1953).

On the return date, the court heard argument by counsel

and, thereafter, denied the application (see orders dated

July 29, 1953). In its opinion, the court stated that it could

pass on those grounds only that had been argued and

passed on by the state courts, and that the only constitu-

tional issue there raised—‘the constitutionality of the use

of special juries under the New York statute’’—had al-

ready been resolved by this Court in Moore v. New York,

333 U.S. 565, and Fay v. New York, 332 U.S. 261 (opinion,

pp. 2-3, 4-5). In addition, the court stated that the proof

offered by the petitioner to sustain the claim that the com-

position of the special jury panel was such as to deprive

him of the due process of law was insufficient for that pur-

pose, since petitioner did not offer proof that would show

purposeful exclusion or discrimination in the preparation

of the special jury list or a resultant denial of a fair trial

(id., pp. 5-6).

The United States Court of Appeals affirmed the deci-

sion on the opinion of the District Court.

The question presented to this Court is whether or not

the District Court was correct in denying petitioner a full

hearing on the ground that the only constitutional issue

urged by him in the state courts—the constitutionality of

the use of special juries under the New York statute—must

‘be resolved against him, and upon the ground that the proof

/ offered in support of his attack on the composition of the

| special jury panel was insufficient to show a denial of due

process.

The respondent’s position is that no substantial con-

stitutional question was raised by petitioner’s claims in

either the state or federal courts at any stage, and that the

District Court was, therefore, without power to issue the

writ of habeas corpus. It is also the respondent’s position

that such power was doubly lacking with respect to the

claims that the use of a special jury under the New York

law is unconstitutional, that the composition of the special

jury panel is violative of the right to a fair trial and that

the prosecution’s use of its record of special jurors’ past

actions was also violative of such right, because none of

those claims was made in the state courts.

ARGUMENT

The District Court was without power to issue the

writ of habeas corpus in this case [answering peti-

tioner’s Points I, pp. 11-13; II, pp. 14-17; Ill, pp.

17-21; IV, pp. 21-23].

The only ground on which, in the New York State

courts, petitioner attacked the use of a special jury was

that the motion papers on which the trial court granted

_ the prosecution’s application for such a jury alleged only

conclusions, rather than facts (20, 24; appellant’s brief on

appeal to New York Court of Appeals, pp. 64-71). He

claimed that that alleged circumstance rendered the order-

ing of a special jury a violation of the Fourteenth Amend-

ment to the Constitution and, concurrently, that section

749-aa, subdivision 4, of the New York Judiciary Law,

defining the showing that must be made by a party litigant

to authorize the use of a special jury, had been unconsti-

tutionally construed and applied in his case (appellant’s

brief on appeal to the New York Court of Appeals, pp.

65-67; see People v. Vanderwyde, supra, 305 N. Y. 552;

application for habeas corpus, paragraph NintH).

That claim, going merely to a matter of state procedure

presenting no semblance of basic unfairness, did not serve

to raise a substantial constitutional question, and was

properly rejected by the District Court for that reason

(opinion, pp. 4-5; Betts v. Brady, 316 U. S. 455; Snyder v.

Massachusetts, 291 U. 8. 97; Brown v. New Jersey, 175

U. S. 172; see Frank v. Mangum, 237 U. S. 309, 338-343;

see Vanderwyde v. New York, 345 U. S. 959, respondent’s

brief in opposition to certiorari, pp. 4-5).

It was in this Court, on his first application for certio-

rari, that petitioner first made the claim, later reiterated

in the District Court, that the composition of the special

jury panel was so weighted as to render it violative of the

Constitution (Vanderwyde v. New York, 345 U. S. 959,

petition for certiorari, pp. 7-9, 18-19; appendix B; s. ¢,

345 U.S. 1004, petition for rehearing, pp. 3-5; application

for habeas corpus, paragraphs Sixtu and Firrrentra). At

no time did he offer to prove either that there was any pur-

poseful class exclusion or discrimination or that the special

jury panel’s composition was unfair except as it deprived

him of a trial by his ‘‘peers.’’ His offer to show merely a

weighting of the panel in favor of ‘‘business’’ people, as

opposed to ‘‘working’’ people, without offering to prove

class exclusion or discrimination or resultant unfairness,

raised no question that had not previously been disposed of

in Moore v. New York, supra, 333 U. S. 565, and Fay v.

New York, supra, 332 U.S. 261.

Petitioner’s third claim—that the use of a special jury

under the New York law was unconstitutional—was, in

effect, an attack on the concept of the special jury as such,

and, in that form, first appeared among his contentions in

this Court (Vanderwyde v. New York, 345 U. 8S. 1004, peti-

tion for rehearing, pp. 3-4). It was utterly without merit

in view of this Court’s positive holdings in Moore v. New

York, supra, and Fay v. New York, supra, that the use of

a special jury is not in itself repugnant to the Constitution.

It was in this Court also that petitioner first claimed

that the prosecution’s keeping of records of special jurors’

past actions created a constitutional question (see Vander-

wyde v. New York, 345 U. S. 959, application for certiorari,

pp. 9-10, 14-15; s. ¢., 345 U. S. 1004, petition for rehearing,

pp. 6-8). As subsequently expounded to the District Court,

the contention was that the district attorney maintains

‘‘a secret file relating to the ‘past performances’ of

‘repeater’ special jurors thus enabling him to exclude a

proposed special juror who may have formerly served on

an acquitting jury, with the result that—unknown to the

defense—the jury box can be filled in part or entirely of

special jurors who have previously voted for convictions”’

(application for habeas corpus, paragraph SEVENTEENTH).

With respect to this, the petitioner asserted that a hearing

should be held by the District Court ‘‘to determine whether

fundamental rights specially secured by the Federal Con-

stitution are invaded by such mode of trial’’ (application

for habeas corpus, paragraph SEVENTEENTH).

The whole contention was utterly without application

to the present proceeding. No objection was made in the

trial court to the prosecution’s use of its records pertain-

ing to special jurors. On the contrary, petitioner merely

requested that he be allowed the equal use of the record

pertaining to any talesman who testified, on voir dire, that

he had previously served in a first-degree Murder case,

and the trial court immediately granted the request (20-1).

Moreover, the record does not disclose whether or not any

talesman did so testify, or what talesmen were peremp-

torily challenged by either side. Thus, the petitioner’s con-

tention has no foundation in the trial record.

As has been indicated, the only one of petitioner’s

claims that was raised in the New York courts was that the

trial court’s granting of the special jury motion on alleg-

edly insufficient motion papers, and the construction and

application of section 749-aa, subdivision 4, of the New

York Judiciary Law as authorizing the trial court’s action,

deprived him of rights under the Fourteenth Amendment.

Each of the other claims—that the concept of the special

jury as such, the composition of the New York County

special jury panel and the prosecution’s records of special

jurors are all repugnant to the Constitution—was urged in

the federal courts for the first time. They were, therefore,

not cognizable by the District Court on the instant habeas

corpus application (Brown v. Allen, 344 U.S. 443, 480 n. 24,

486; see Darr v. Burford, 339 U. S. 200, 203; cf. In re Wood,

140 U. S. 278, 285; Ex parte Spencer, 228 U. S. 652, 660;

Davis v. Burke, 179 U. S. 399).

i. si ae os . ae ENR EERIE IL Ie LN NE NLT I

Conclusion

The District Court’s denial of the writ of habeas corpus

was correct, since none of petitioner’s claims there served

to raise a constitutional question of any substance. More-

over, with one exception, those claims were not cognizable

on habeas corpus in any event because they had not been

made in the state courts.

Respectfully submitted,

NatTHanieL L. GoLpstEeIn

Attorney General of the

State of New York

Frank S. Hocan

District Attorney of the

County of New York

WeENDELL P. Brown

Solicitor General

SaMvuEL A. HirsHowi1tz

TueEopore P. Hatperin

Assistant Attorneys General

Ricuarp G. DENZER

Pau A. Stone

Assistant District Attorneys

Of Counsel

March, 1954

(4299)

/ HAROLD B. Wilt

In THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1953

No. 447 Misc.

WILLIAM VANDERWYDE,

Petitioner,

against

WILFRED L. DENNO, Warden of Sing Sing Prison,

Ossining, New York,

Respondent.

PETITION FOR REHEARING OF ORDER DENYING

PETITION FOR WRIT OF CERTIORARI

RupDOoLPH STAND,

Counsel for Petitioner.

BRP TN NS ;

: SEIN RO RF aR

7 POR ese “ Pr

INDEX

NO CU OE oa ick ane enscanc-cvandene nds

Reasons for Granting Rehearing ..................

NE SSIN Gc tering. 6h wad oN ACEOU MEWS O80 508

OE ES Sa eee ee emer

TABLE OF CASES

Brinkerhoff-Faris Trust Co. v. Hill, 280 U. S. 604,

EE I Sich ane dkcascsansacisoneea

Dewey v. Des Moines, 173 U. S. 193, 197-8 ........

Hickman v. Taylor, 327 U. S. 808;

328 U. S. 876

EE ch bok awe a es's awe

muonee ¥. Mayo, Bat U. GB. G2, 4B cc ce eee eccass

Moore v. Dempsey, 261 U. S. 86, 91 ................

‘People v. Vanderwyde, 305 N. Y. 552 ..............

Statutes Crrep

Constitution of the United States, 14th Amendment

ie et ee Ne ee

OTHER AUTHORITY

Judicial Council, 18th Annual Report (1952) ......

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.